The consultation paper Fiduciary Duties of Investments Intermediaries: A Consultation Paper follows on from the Kay Report on UK Equity Markets and Long Term Decision Making (see below), and uses pensions as the example, tracing a chain of intermediaries from the prospective pensioner/saver to the registered shareholder of a UK company. There are well established duties on pension trustees to act in the best interests of scheme members, and it looks at how far these duties require trustees to maximize financial return over a short time scale, and how far trustees can consider other factors such as environmental and social impact. The consultation asks: Whether the law is right to allow trustees to consider ethical issues only in limited circumstances? Whether the legal obligations on trustees are conducive to investment strategies in the best interests of the ultimate beneficiaries? and if not, what specifically ne
In The Financial Courts, Jo Braithwaite analyses thirty years of cases involving the global derivatives markets, exploring the nature of these legal disputes and assessing their impact on financial markets and on commercial law more broadly. Weaving together this substantial body of cases with theoretical insights drawn from the growing literature on the internationalisation of financial law, Braithwaite offers readers a detailed and highly original contribution to the debate about the role of private law in international financial markets. This important work should be read by lawyers, economists and regulators in the field.
This book examines the relationship between the EU investor protection regulations enshrined in MiFID and MiFID II and national contract and torts law. It describes how the effect of the conduct of business rules as implemented in national financial supervision legislation in private law extends to the issue of enforcement, and critically assesses this interaction from the perspective of EU law. In particular, the conclusions identified in the book will deepen readers’ understanding of the interplay between the conduct of business rules and private law norms governing a firm’s liability to pay damages, such as duty of care, attributability of damage, causation, contributory negligence and limitation. In turn, the book identifies the subordination and the complementarity model to conceptualise the interaction between the conduct of business rules and private law norms. Moreover, the book challenges the view that civil courts are – or should be – forced to give private law effects to violation of the MiFID and MiFID II conduct of business rules in line with the subordination model. Instead, the complementarity model is advanced as the preferred approach to this interaction in view of what MiFID and MiFID II require from Member States in terms of their implementation, as well as the desirability of each model. This model presupposes that courts should consider the conduct of business rules when adjudicating individual disputes, while preserving the autonomy of private law norms governing liability of investment firms towards clients. Based on analysis of case law of courts in Germany, the Netherlands and England & Wales, as well as scholarly literature, the book also compares the available causes of action, the conditions of liability and the obstacles investors face when claiming damages, as well as how and the extent to which investors can benefit from the conduct of business rules in clearing these obstacles. In so doing, under the approach adopted by national courts to the interplay between the conduct of business rules of EU origin and private law, the book shows how investors can benefit from the influence of these rules on private law norms. In closing, it demonstrates a hybridisation of private law remedies resulting from the accommodation of the conduct of business rules into the private law discourse according to the complementarity model, illustrating how judicial enforcement through private law means may contribute to investor protection.
Company Law provides adept, comprehensive coverage of the law for the student reader. Hannigan captures the dynamism of the subject, engaging with corporate structures, governance, finance, and liquidation.
Market abuse and insider dealing remains and always has been a real concern for all those that operate in the financial sector. Some of the earliest laws relating to trade outlaw attempts to artificially interfere with the proper functions of the markets and ensure fairness. With recent changes to both the UK and European regimes the line between what is normal (and sensible) business practice and what may now be classified as market abuse is becoming increasingly fine. This raises questions about communications between financial institutions and investors, and about corporate and analyst access. Market Abuse and Insider Dealing provides guidance on and explanation of the range of potential legal and regulatory responses to this complex area of law. Providing a thorough analysis and assessment of the law relating to market abuse and insider dealing, the new fourth edition includes: - analysis of the impact of Brexit - significant new case law and legislation including MiFID II; Money Laundering Regulations 2017; the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017; Criminal Finances Act 2017 with Unexplained Wealth Orders; The Fifth Money Laundering Directive - the new Corporate Governance Code - new content on: control and senior managers' responsibility/liability; the FCAs competition law jurisdiction where it is appropriate to do so in relation to market abuse; a new table of UK decided market abuse cases This title is included in Bloomsbury Professional's Banking and Finance Law online service.
Corporate governance in financial institutions has come under the spotlight since the banking crisis in the UK in 2008-9. In many respects, the banking business raises unique problems for corporate governance that are not found in other corporate secto
Within corporate governance the accountability of the board of directors is identified as a major issue by governments, international bodies, professional associations and academic literature. Boards are given significant power in companies, and as a consequence it is argued that they should be accountable for their actions. Drawing on political science, public administration, accounting, and ethics literature, this book examines the concept of accountability and its meaning in the corporate governance context. It examines the rationale for making boards accountable, and outlines the obstacles and drawbacks involved in providing for accountability. The book goes on to examine how current mechanisms for ensuring accountability are assessed in terms of fairness, justice, transparency, practicality, effectiveness and efficiency, before discussing the ways that accountability might be improved. Andrew Keay argues that enhanced accountability can provide better corporate governance, helping to reduce the frequency and severity of financial crises, and improve confidence in company practice. As an in depth study of a key element within the exercise of authority and management in corporate entities, this book will be of great use and interest to researchers and students of corporate governance, business and management, and corporate social responsibility.
The spate of mis-selling episodes that have plagued the financial services industries in recent years has caused widespread detriment to investors. Notwithstanding numerous regulatory interventions, curtailing the incidence of poor investment advice remains a challenge for regulators, particularly because these measures are taken in a 'fire-fighting' fashion without adequate consideration being given to the root causes of mis-selling. Against this backdrop, this book focuses on the sale of complex investment products to corporate retail investors by drawing upon the widespread mis-selling of interest rate hedging products (IRHP) in the UK and beyond. It brings to the fore the relatively understudied field concerning the different degrees of investor protection mechanisms applicable to individual retail investors – as opposed to corporate retail investors – by taking stock of past regulatory reforms and forthcoming regulatory initiatives as well as, more importantly, the conclusions reached by the judiciary in IRHP mis-selling claims. The conclusions are particularly interesting: corporate retail investors are in a vulnerable position when compared to individual retail investors. The former are exposed to a heightened risk of mis-selling, meaning that regulatory intervention should be targeted accordingly. The recommendations made as a result of these findings are further supported by insights emerging from behavioural law and economic theories. This book is aimed at researchers, lawyers and students with an interest in the financial regulation field who are keen to explore potential regulatory reforms to the investment services regime that address the root causes of mis-selling, and restore a level playing field amongst all retail investors.
This book provides evidence on the relevance of environmental and social factors in decision making. It discusses the Gold Standard Frameworks for integrating extra-financial risks into the philosophy, culture, strategies, products and value chain management procedures of investment and banking and highlights the current emergence of global administrative law. New emerging topics like positive impact investing and finance, climate friendly markets, human rights, the enhanced role of fiduciary duties and shared values are approached with a lot of examples for practical application. Steps towards a new banking culture, a new climate for double loop learning and sustainable financial innovation are outlined and the additional benefits of robust stakeholder engagement explained. The anthology paves the way from robust impact and risk management to positive impact creation and a new investment culture. As well, challenges for the implementation and ways to overcome them are broadly discussed. The book is rooted in the fact that institutions and investors which fail to professionally integrate the management of extra-financial risk into their whole lending and investment chain and fail to move to positive impact creation may well loose positions and mandates and finally the trust of their clients, partners and stakeholders. The contributing authors of this anthology are internationally renowned experts in the field of ESG and impact investing. The compendium brings together practitioners and academics to allow a confluence of thoughts, concepts and viewpoints. This huge variety of perspectives and approaches makes this volume a comprehensive compendium on responsible investment and banking.
